Admiralty law
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Admiralty law (also referred to as maritime law) is a distinct body of law which governs maritime questions and offenses. It is a body of private international law governing the relationships between private entities which operate vessels on the oceans. It is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations.
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[edit] Background
Sea-borne transport being one of the most ancient channels of commerce, rules for resolution of disputes involving maritime trade developed very early in recorded history. Classical sources of this law include the Rhodian law (of which no primary written specimen has survived, but which is alluded to in other legal texts: Roman and Byzantine legal codes) and later the customs of the Hanseatic League.
Islamic law also made major contributions to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways. These included Muslim sailors being "paid a fixed wage “in advance” with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions" in which contracts should specify “a known fee for a known duration”, in contrast to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture’s profit, with shares allotted by rank, only after a voyage’s successful conclusion." Muslim jurists also distinguished between "coastal navigation, or cabotage," and voyages on the “high seas”, and they also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian’s Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also a precursor to the European commenda limited partnership. The “Islamic influence on the development of an international law of the sea” can thus be discerned alongside that of the Roman influence.[1]
Admiralty law was introduced into England by Eleanor of Aquitaine while she was acting as regent for her son, King Richard the Lionheart. She had earlier established admiralty law on the island of Oleron (where it was published as the Rolls of Oleron) in her own lands (although she is often referred to in admiralty law books as "Eleanor of Guyenne"), having learned about it in the eastern Mediterranean while on a Crusade with her first husband, King Louis VII of France. In England, special admiralty courts handle all admiralty cases. These courts do not use the common law of England, but are civil law courts largely based upon the Corpus Juris Civilis of Justinian.
Admiralty Courts were a prominent feature in causing the American Revolution. For example, the phrase in the Declaration of Independence “For depriving us in many cases, of the benefits of Trial by Jury” refers to the practice of Parliament giving the Admiralty Courts jurisdiction to enforce The Stamp Act in the American Colonies. See the Stamp Act, March 22, 1765, D. Pickering, Statutes at Large, Vol. XXVI, p. 179 ff. (Clause LVII relates to jurisdiction in admiralty). Because the Stamp Act was unpopular, a colonial jury was unlikely to convict a colonist of its violation. Since Admiralty Courts do not grant trial by jury, a colonist accused of violating the Stamp Act could be tried before a judge of the Admiralty Courts without a jury.
Admiralty law became part of the law of the United States as it was gradually introduced through admiralty cases arising after the adoption of the U.S. Constitution in 1789. Many American lawyers who were prominent in the American Revolution were admiralty and maritime lawyers in their private lives. Those included are Alexander Hamilton in New York and John Adams in Massachusetts.
In 1787 Thomas Jefferson, who was then ambassador to France, wrote to James Madison proposing that the U.S. Constitution, then under consideration by the States, be amended to include "trial by jury in all matters of fact triable by the laws of the land [as opposed the law of admiralty] and not by the laws of Nations [i.e. not by the law of admiralty]." The result was the Seventh Amendment to the U.S. Constitution.
[edit] International conventions
Prior to the mid-1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as the Comite Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI was responsible for the drafting of numerous international conventions including the Hague Rules (International Convention on Bills of Lading), the Visby Amendments (amending the Hague Rules), the Salvage Convention and many others. While the CMI continues to function in an advisory capacity, many of its functions have been taken over by the International Maritime Organization, which was established by the United Nations in 1958 but did not become truly effective until about 1974.
The IMO has prepared numerous international conventions concerning maritime safety including the Safety of Life at Sea Convention (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), the Collision Regulations (COLREGS), Maritime Pollution Regulations (MARPOL), International Aeronautical and Maritime Search and Rescue Convention (IAMSAR) and others. The United Nations Convention on the Law of the Sea (UNCLOS) defined a treaty regarding protection of the marine environment and various maritime boundaries.
Once adopted, the international conventions are enforced by the individual nations which are signatories, either through their local Coast Guards, or through their courts.
[edit] In the United States
[edit] Jurisdiction
Article III, Section 2 of the United States Constitution grants original jurisdiction to U.S. federal courts over admiralty and maritime matters. While admiralty cases remain the exclusive jurisdiction of the federal courts, many lawsuits involving incidents in maritime practice may be brought in either federal or state court.
The federal courts have exclusive jurisdiction over most admiralty and maritime claims pursuant to the terms of 28 U.S.C. § 1333. Under this statute, federal district courts are granted original jurisdiction over admiralty actions "saving to suitors" a right to sue for most of these actions in state courts. See . Despite the savings to suitors clause, certain actions are only permitted to be filed in admiralty in federal court. Those include all in rem maritime actions. This includes suits seeking to arrest ships to enforce maritime mortgages and liens, petitions to limit a shipowner's liability to the value of a ship after a major accident, and actions seeking to partition ownership of a ship. However, the vast majority of maritime actions, such as suits for damage to cargo, injuries to seamen, collisions between vessels, wake damage, and maritime pollution cases may be brought in either state court or federal court by virtue of the savings to suitors clause.
In federal courts in the United States, there is generally no right to trial by jury in admiralty cases. However, Congress has created some limited rights of jury trial in seamen's personal injury actions brought under the Jones Act where a jury trial is otherwise permitted. In state courts, the right to trial by jury is determined by the law of the state where the case is brought. Consequently, admiralty cases brought in state courts can be tried before a jury.
[edit] Applicable law
A state court hearing an admiralty or maritime case is required to apply the admiralty and maritime law, even if it conflicts with the law of the state, under a doctrine known as the "reverse-Erie doctrine." The "Erie doctrine" says that federal courts hearing state actions must apply state law. The "reverse-Erie doctrine" says that state courts hearing admiralty cases must apply federal admiralty law. This can make a big difference; for example, U.S. maritime law recognizes the concept of joint and several liability among tortfeasors, while many states do not. Under joint and several liability, where two or more people create a single injury or loss, all are equally liable, even if they only contributed a small amount. A state court hearing an admiralty case would be required to apply the doctrine of joint and several liability even if its state had outlawed the concept.
Here are some basic principles of maritime law in the United States:
[edit] Limitation of shipowner's liability
One of the unique aspects of maritime law is the ability of a shipowner to limit its liability to the value of a ship after a major accident. An example of the use of the Limitation Act is the sinking of the RMS Titanic in 1912. Even though the Titanic had never been to the United States, upon her sinking the owners rushed into the federal courts in New York to file a limitation of liability proceeding. The Limitation Act provides that if an accident happens due to a circumstance which is beyond the "privity and knowledge" of the ship's owners, the owners can limit their liability to the value of the ship after it sinks.
After the Titanic sank, the only portion of the ship remaining were the 14 life boats, which had a collective value of about $3000, and the "pending freight" bringing the total to about $91,000. The cost of a first-class, parlor suite ticket was over $4,350. The owners of the Titanic were successful in showing that the sinking occurred without their privity and knowledge, and therefore, the families of the deceased passengers, as well as the surviving passengers who lost their personal belongings, were entitled to split the $91,000 value of the remaining lifeboats and pending freight.
In the era of modern communications, continued need for the Limitation Act is questionable. The theory behind the Act was that a shipowner who properly equipped and crewed a ship shouldn't be liable for something that happens when the ship is out of his control. Modern ships are seldom out of the control of their shoreside owners, but the Act remains a viable protection to them.
The Limitation Act doesn't just apply to large ships. It can be used to insulate a motorboat owner from liability when he loans his boat to another who then has an accident. Even jet ski owners have been able to successfully utilize the Limitation Act to insulate themselves from liability.
[edit] Cargo claims
Claims for damage to cargo shipped in international commerce are governed by the Carriage of Goods by Sea Act (COGSA), which is the U.S. enactment of the Hague Rules. One of its key features is that a shipowner is liable for cargo damaged from "hook to hook," meaning from loading to discharge, unless it is exonerated under one of 17 exceptions to liability, such as an "act of God," the inherent nature of the goods, errors in navigation, and management of the ship. A shipowner is generally entitled to limit its liability to $500 per package, unless the value of the contents is disclosed and marked on the container. The ability to treat an ocean shipping container as a package has enabled shipowners to effectively limit their liability to $500 per container, even though the value of the cargo inside container can be over 1000 times that amount. This practice has resulted in substantial and continuing litigation in the United States. The statute of limitations on cargo claims is one year.
[edit] Personal injuries to seamen
Seamen injured aboard ship have three possible sources of compensation: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to both pay for an injured seaman's medical treatment until maximum medical recovery (MMR) is obtained and provide basic living expenses until completion of the voyage, even if the seaman is no longer aboard ship. The seaman is entitled to maintenance and cure as of right, unless he was injured due to his own willful gross negligence. It is similar in some ways to workers' compensation. The doctrine of unseaworthiness makes a shipowner liable if a seaman is injured because the ship, or any appliance of the ship, is "unseaworthy," meaning defective in some way. The Jones Act allows a sailor, or one in privity to him, to sue the shipowner in tort for personal injury or wrongful death, with trial by jury. The Jones Act incorporates the Federal Employers Liability Act (FELA), which governs injuries to railway workers, and is similar to the Coal Miners Act. A shipowner is liable to a seaman in the same way a railroad operator is to its employees who are injured due to the negligence of the employer. The statute of limitation is three years.
Not every worker injured onboard a vessel is a "seaman" entitled to the protections offered by the Jones Act, doctrine of unseaworthiness, and principle of maintenance and cure. To be considered a seaman, a worker must generally spend 30% or more of his working hours onboard either a specific vessel or a fleet of vessels under common ownership or control. With few exceptions, all non-seamen workers injured over navigable waters are covered instead by the Longshore and Harbor Workers' Compensation Act, , a separate form of workers' compensation.
[edit] Maintenance and cure
The doctrine of maintenance and cure is rooted in the Article VI of the Rules of Oleron promulgated in about 1160 A.D. The obligation to "cure" requires a shipowner to provide medical care, free of charge, to a seaman injured in the service of the ship, until the seaman has reached "maximum medical cure." The concept of "maximum medical cure" is more extensive than the concept "maximum medical improvement." The obligation to "cure" a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they don't "improve" his actual condition. They may include long term treatments permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications.
The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing. Once a seaman is able to work, he is expected to maintain himself. Consequently, a seaman can lose his right to maintenance, while the obligation to provide cure is ongoing.
[edit] Personal injuries to passengers
Shipowners owe a duty of reasonable care to passengers (for a broad overview of this theory in law, see negligence). Consequently, passengers who are injured aboard ships may bring suit the same as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent. While the statute of limitations is generally three years, suits against cruise lines must usually be brought within one year because of limitations contained in the passenger ticket. Most cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami, Florida or Seattle, Washington.
[edit] Maritime liens and mortgages
- See also: Maritime lien
Banks which loan money to purchase ships, vendors who supply ships with necessaries like fuel and stores, seamen who are due wages, and many others have a lien against the ship to guarantee payment. To enforce the lien, the ship must be arrested or seized. This is one of those remedies which must be brought in federal court and cannot be done in state court.
[edit] Salvage and treasure salvage
- See also: Marine salvage
When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salved property. There is no "life salvage." All mariners have a duty to save the lives of others in peril without expectation of reward. Consequently salvage law applies only to the saving of property.
There are two types of salvage: contract salvage and pure salvage, which is sometimes referred to as "merit salvage." In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. The most common salvage contract is called a "Lloyds Open Form Salvage Contract."
In pure salvage, there is no contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in federal court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.
Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment in order to salvage the damaged ship. Examples of high-order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship or boat which has already sunk, or towing a ship which is in the surf away from the shore. Low-order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage.
In both high- and low-order salvage the amount of the salvage award is based first upon the value of the property saved. If nothing is saved, or if additional damage is done, there will be no award. The other factors to be considered are the skills of the salvor, the peril to which the salvaged property was exposed, the value of the property which was risked in effecting the salvage, the amount of time and money expended in the salvage operation etc.
A pure or merit salvage award will seldom exceed 50 percent of the value of the property salved. The exception to that rule is in the case of treasure salvage. Because sunken treasure has generally been lost for hundreds of years, while the original owner (or insurer, if the vessel was insured) continues to have an interest in it, the salvor or finder will generally get the majority of the value of the property. While sunken ships from the Spanish Main (such as Nuestra Señora de Atocha in the Florida Keys) are the most commonly thought of type of treasure salvage, other types of ships including German submarines from World War II which can hold valuable historical artifacts, American Civil War ships (the USS Maple Leaf in the St. Johns River, and the USS Monitor in Chesapeake Bay), and sunken merchant ships (the SS Central America off Cape Hatteras) have all been the subject of treasure salvage awards. Due to refinements in side-scanning sonars, many ships which were previously missing are now being located and treasure salvage is now a less risky endeavor than it was in the past, although it is still highly speculative.
[edit] Maritime law of common law countries
Most of the common law countries (including Pakistan, Singapore, India, Canada, and many other Commonwealth of Nations countries) follow the English statutes and case laws. India still follows the old Victorian law i.e. Admiralty Court Act, 1861 [24 Vict c 10]. Though Pakistan has its own statutes i.e. Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance XLII of 1980), it still follows English case laws. One reason is that the Pakistani law is somewhat replica of old English admiralty law as enunciated in Administration of Justice Act, 1956. The current statute dealing with the Admiralty jurisdiction of the England and Wales High Court is Supreme Court Act, 1981 (sec.20-24,37). This statute is based on International Arrest Convention 1952. Other countries, which do not follow the English statutes and case laws, such as Panama have also established well-known maritime courts which decide international cases on a regular basis.
Admiralty Courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not and wherever the residence or domicile or their owners may be. A vessel is usually arrested by the court to retain jurisdiction. State owned vessels are usually immune from arrest.
[edit] Maritime law programs
There are several universities around the world that offer different types of alternatives to professionals interested in pursuing this field.
What follows is a partial list of overseas universities offering postgraduate maritime courses:
Singapore
1. National University of Singapore LLM(Maritime Law) Graduate Diploma in Maritime Law and Arbitration International Maritime Organization
Sweden
2. World Maritime University (Malmo) • Master of Science in Maritime Affairs
Norway
3. University of Oslo (Scandinavian Institute of Maritime Law) • LLM in Maritime Law
The Netherlands
4. Erasmus University Rotterdam • Master of Science in Maritime Economics and Logistics
United Kingdom
5. University of Southampton (Institute of Maritime Law) • LLM in Maritime Law
6. Cardiff University Master of Science in Marine Policy LLM in Legal Aspects of Marine Affairs
7. City University • MSc in Shipping Trade & Finance
8. University of Glasgow MSc in Marine Technology MSc in Marine Engineering MEng in Naval Architecture and Marine Engineering/Ocean Engineering/Small Craft Engineering
9. University of Newcastle upon Tyne MSc in Marine Engineering MSc in Marine Technology MSc in Marine Electrical Power Technology MSc in Naval Architecture
10. University of Plymouth • MSc in Port Management
11. The University of Strathclyde MSc in Marine Engineering MSc in Marine Technology MEng in Advanced Marine Design MEng in Naval Architecture and Marine Engineering/Ocean Engineering/Small Craft Engineering
12. University of Wales Swansea (Institute of International Shipping and Trade Law) • LLM in Commercial and Maritime Law
13. University of Greenwich (Greenwich Maritime Institute) • Master of Arts in Maritime Policy
United States
14. Tulane Law School • LLM in Admiralty
Canada
15. Dalhousie Law School • LLM in Marine and Environmental Law
[edit] References
- ^ Tai, Emily Sohmer (2007), “Book Review: Hassan S. Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050): The “Kitāb Akriyat al-Sufun” vis-à-vis the “Nomos Rhodion Nautikos””, Medieval Encounters 13: 602-12
[edit] See also
- Amalfian Laws
- Barratry
- Canals
- Docks
- General average
- Navigation
- Piers
- Piracy
- Prize
- Sailor
- Shipping
- Waters
- Wharves
- Declaration of London
- United Nations Convention on the Law of the Sea
- [[1]]
- [[2]]
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[edit] External links
- Westminster International Maritime Security and the ISPS Code
- LII: Law about... Admiralty
- Law of the Sea at the UN web
- Admiralty and Maritime Law Guide
- Marine Affairs Instituteat Roger Williams University School of Law
- USAK Center for Sea and Water Law Studies
- Tetley's maritime & admiralty law
- Introduction to Maritime Law
- http://www.paed.uscourts.gov/documents/opinions/03D0335P.pdf
- http://www.paed.uscourts.gov/documents/opinions/04D0018P.pdf
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